125 F.

3d 862
97 CJ C.A.R. 2169
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Usha KATARIA, Plaintiff-Appellant,

v.
John J. CALLAHAN, Acting Commissioner, Social Security
Administration,* Defendant-Appellee.
No. 97-5050.
(D.C.No. 95-CV-730)
United States Court of Appeals, Tenth Circuit.
Oct. 1, 1997.

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

1ORDER AND JUDGMENT**

2

MURPHY, C.J.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without
oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Claimant Usha Kataria appeals from an order of the district court affirming the
final decision of the Commissioner of Social Security denying her application
for supplemental security income benefits. We review the Commissioner's
decision to determine whether it is supported by substantial evidence and
whether the correct legal standards were applied. See Washington v. Shalala, 37
F.3d 1437, 1439 (10th Cir.1994). The Commissioner's factual findings are

conclusive when supported by substantial evidence, see 42 U.S.C. 405(g),

which is adequate relevant evidence that a reasonable mind might accept to
support a conclusion, see Richardson v. Perales, 402 U.S. 389, 401 (1971).
5

In her application for benefits filed in March 1993, claimant contended that she
was disabled due to a variety of ailments including bone spurs in her heels,
goiter, hypertension and ulcer disease. Subsequently she was diagnosed as
having diabetes. Relying on the opinion of a medical expert who had reviewed
claimant's medical records, the administrative law judge (ALJ) concluded that
the goiter, hypertension, ulcer disease and diabetes were adequately controlled
through medication and thus were not severe impairments. He found her bone
spurs to be severe impairments, but also found they did not prevent her from
performing the full range of sedentary work. Because claimant had no past
relevant work, the case proceeded to step five of the five-part sequential
process for determining disability. See 20 C.F.R. 416.920. Relying on the
Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ
determined that claimant was not disabled and denied her application for
benefits. The Appeals Council denied review, making the ALJ's determination
the final decision of the Commissioner.

On appeal, claimant contends that the ALJ's finding that her goiter,
hypertension, ulcer disease, and diabetes were not severe impairments because
they were well controlled with medication is not supported by substantial
evidence because the ALJ failed to consider the fact that claimant could not
afford and therefore was not taking the medication necessary to control these
ailments. She further contends that because this case reached step five, the
burden was on the Commissioner to show that the impairments were adequately
controlled.

Ordinarily, a claimant cannot be found disabled when her impairment can be

controlled through medical treatment and she unjustifiably refuses to undergo
that treatment. See 20 C.F.R. 416.930; Teter v. Heckler, 775 F.2d 1104, 1107
(10th Cir.1985). Claimant does not question the ALJ's conclusion that her
impairments can be readily controlled through use of prescribed medications.
She contends instead that (1) she did not take the medications, and (2) the
reason she did not take them was because she could not afford them, which
may be a justifiable excuse, see id.

There is evidence in the record that claimant was at least delayed in obtaining,
and maybe never did obtain, certain medical procedures, such as X-rays and a
thyroid scan that apparently were not available from free clinics. However,
there is no medical evidence that she could not or did not obtain prescribed

medications or that her condition deteriorated or was not controlled because of a

failure to take prescribed medications. It is clear that at least until October
1993, nine months prior to her hearing before the ALJ, she was taking her
prescribed medications. See Appellant's App. Vol. II at 129 (claimant's
statement listing medications she was then taking, including zantac for her
ulcer, hyydrochlorathizide for hypertension, and synthroid for her goiter). She
apparently obtained these medications from the Morton Clinic, which claimant
describes as a clinic for the homeless that apparently provides, at no cost,
medications and certain medical services. See, e.g, Appellant's Br. at 4-5
(describing numerous doctor visits to Morton and Neighbor for Neighbor
clinics and noting that "Ms. Kataria returned each month [to the Morton Clinic]
for her medication").
9

There is some evidence indicating that at some point claimant may have been
unable to obtain her medications and was not taking them. At her hearing
before the ALJ on July 1, 1994, claimant stated that the doctor had given her
medicine for her thyroid problem, but that it did not help much. Appellant's
App. Vol. II at 40. Later, in response to a question from her representative
concerning why she needed benefits, she stated:

I10don't have money to pay the bills. I don't have any doctor. My sickness, my disease,
this thyroid problem, knee pain, I just need some medicine, some medication, some
treatment. I can not go to any doctor, they always refuse to do my treatment.
11

Id. at 56-57. There were no followup questions or other discussion at the

hearing concerning claimant's failure to take and/or inability to obtain her
prescribed medications. The only other indication in the record that she might
not be taking her medications is a January 1995 notation in the records from the
Neighbor for Neighbor Clinic, where claimant went for treatment for her
diabetes, stating that the University of Oklahoma Adult Medicine Clinic
"turned pt over to collections--so pt. discontinued treatment & has not been
going any where for care since then." Id. at 236. However, claimant apparently
obtained medication for her diabetes from the Neighbor for Neighbor Clinic "to
last until Morton appt." Id. at 235.
The ALJ found that

12 claimant has medically-determinable impairments of hypothyroidism and

[t]he
goiter, hypertension, ulcer disease, and diabetes, but the medical evidence shows
that these conditions are well controlled with medication. The Administrative Law
Judge finds that these impairments are not severe and would no more than
minimally affect her ability to engage in substantial gainful activity.

13

Id. at 14. The ALJ did not address whether claimant was continuing to take her
medications, nor whether she failed to take them because she could not afford
them.

14

The evidence is at best inconclusive whether claimant in fact failed to take her
prescribed medications, and whether if she did not take them, it was because
she could not afford them, particularly in light of their apparent availability
from free clinics. We disagree with claimant's contention that the absence of
evidence from October 1993 to January 1995 showing that she did take her
medications necessarily means that she did not take them, that the reason she
did not take them was because of her poverty, or even that she continued to
experience symptoms. Moreover, her contention that the lack of treatment for
her thyroid disorder caused her diabetes is not supported by any medical
evidence. We conclude that the ALJ did not commit reversible error in finding
that claimant's goiter, hypertension, ulcer disease and diabetes were well
controlled by medications.

15

AFFIRMED.

Pursuant to Fed. R.App. P. 43(c), John J. Callahan, Acting Commissioner of

Social Security, is substituted for Shirley S. Chater, Commissioner of Social
Security, as the defendant in this action

**

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3